Jones v Kaney and other disincentives: why the Supreme Court's decision should prompt a Law Commission review of the law in relation to expert witness evidence in family cases [2012] CFLQ 234

This article considers expert witness evidence in the family justice system in light of the Supreme Court’s abolition of expert witness immunity in Jones v Kaney [2011] UKSC 13, [2011] 2 FLR 312. The ‘Jones v Kaney factor’ is just one amongst several disincentives which discourage expert witnesses from offering their services in the family courts. Jones v Kaney firmly puts the spotlight on these disincentives and begs the question: how could the law change to address them and increase the availability of expert witness in the family justice system? It is argued that changes in the law could do much. There should be criteria for judges to apply when considering whether or not the proposed expert evidence is necessary and reliable. There should be clearer guidance on how expert witnesses should best present their analysis and opinion. There should be a legal requirement for training and accreditation. The law should guarantee that expert witnesses receive feedback and the chance to respond to criticism. This article argues that the family justice system’s ‘laissez-faire’ approach to expert evidence is unsatisfactory and ripe for review by the Law Commission.